Discovery About Discovery – When Was Duty to Preserve Triggered?

E-Discovery LLC - Discovery About Discovery – When Was Duty to Preserve Triggered By Michael Berman
Image: Holley Robinson, EDRM.

[EDRM Editor’s Note: The opinions and positions are those of Michael Berman.]

In Linet Americas, Inc. v. Hill-Rom Holdings, Inc., 2024 WL 3425795 (N.D. Ill. Jul. 15, 2024), the court “allowed [defendants] Hillrom to take limited discovery about when [plaintiff] Linet’s duty to preserve may have arisen….”

In short, the court authorized discovery of privilege-log-type information, such as when plaintiff communicated with counsel prior to suit and the general subject-matter of those communications.  However, it did not allow discovery of the privileged communications.

The Linet Americas court allowed ’narrowly tailored’ discovery of ‘when Linet reasonably anticipated litigation,’ including ‘a log of communications between Linet and its law firm from December 2019 to April 2020 (containing the dates, participants in, and the subject matter of the communications).’”

While Linet’s communications with counsel before the execution of Linet’s retention agreement with [its then-counsel] Hunton may be relevant to when Linet’s duty to preserve arose, Hillrom does not cite any cases authorizing or requiring piercing the attorney client privilege in such circumstances.

Linet Americas, Inc. v. Hill-Rom Holdings, Inc., 2024 WL 3425795 (N.D. Ill. Jul. 15, 2024).

One limit on the scope of that discovery was that the court “did not require Linet to produce privileged communications related to that issue.” 

The court wrote that: “Hillrom contends production of Linet’s privileged communications with counsel before its retention of Hunton Andrews Kurth, the law firm that represented Linet in this lawsuit when it filed its complaint, are ‘central to [ ] ‘when Linet’s duty to preserve arose,’ ‘ and this discovery ‘will inform the proper remedy for Linet’s ESI destruction …’”

The court rejected a request for that information, writing: “While Linet’s communications with counsel before the execution of Linet’s retention agreement with [its then-counsel] Hunton may be relevant to when Linet’s duty to preserve arose, Hillrom does not cite any cases authorizing or requiring piercing the attorney client privilege in such circumstances.”

Author

  • Michael D. Berman

    Mike is the owner of E-Discovery, LLC, and of counsel at Rifkin Weiner Livingston LLC, in Baltimore. He concentrates on commercial litigation and offers mediation services. He was the primary editor of Electronically Stored Information in Maryland Courts (Md. State Bar Ass’n. 2020), and he co-edited M. Berman, C. Barton, and P. Grimm, eds., Managing E-Discovery and ESI: From Pre-Litigation Through Trial (ABA 2011), and J. Baron, R. Losey, and M. Berman, eds., Perspectives on Predictive Coding (ABA 2016). Mike has litigated a number of cases in the trial and appellate courts in Maryland. He is an Adjunct Professor at the University of Baltimore School of Law where he co-teaches a three-credit discovery workshop that focuses on e-discovery. He has lectured at the Maryland Judicial College and he chaired the Bar committee that drafted the proposed ESI Principles for the District of Maryland. He is a past: co-chair of the Federal District Court Committee of the Maryland State and Federal Bar Associations; chair of the Litigation Section Council, Maryland State Bar Association; and, co-chair of the American Bar Association Litigation Section Book Publishing Board. He graduated from the University of Maryland School of Law and is also an Army veteran. He is admitted to the Maryland bar. The opinions expressed in this blog are not necessarily those of Rifkin Weiner Livingston LLC.

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